As an attorney, H-2B visas are my absolute favorite! An employer who gets his H2B workers is nearly guaranteed they will have an 100% H2B employee retention rate for the season (imagine that!). It’s also great for the workers who make enough money to send back to their family to perhaps put on another room in their home or help pay for the additional costs of a new baby in the family. It’s a ‘win-win’ scenario for both the employer and the workers. It’s also a ‘win’ for attorneys because when the business gets their visa, it means a happy client as well.
Wyngaard Law Firm LLC got started in immigration law with H-2Bs visas and, to this day, we still receive more calls about H2Bs than any other type of visa. As our clients know, our law firm tries to make the H2B process understandable as we move through the different stages of filings.
Below is an overview of the H-2B process. If you have questions about this process, please either call me directly at 970-318-0464 or email me at email@example.com. I am always happy to discuss H-2Bs.
Step 1: Prove to the DOL that your business cannot find US workers for the job:
We first give the Department of Labor a job description of what your workers will be doing and they tell us what the hourly wage is. We then file paperwork with the DOL and try to find US workers for the job. This means that we put up your Help Wanted ad on 2 different websites and you must hire any qualified US workers. If you need 5 workers and you find 5 qualified US workers for the job, this would end the process BUT we all know that this isn’t what happens. If you could find qualified US workers by putting up a few Help Wanted ads on websites, you would never have called Wyngaard Law in the first place! The truth is that most of our clients will not receive any applicants for their job, so the DOL ends up certifying that employer for the same number of visas that we originally filed the paperwork for. At that point, we have DOL Certification (woo hoo)!
Step 2: We take that DOL certification and we tell USCIS (Homeland Security) that we have proven to the DOL that you have a need that you could not satisfy with US workers and that you want to bring in foreign workers for the job. We then file an I-129 petition along with the supporting documents to Homeland Security. Once USCIS accepts your paperwork for processing, you have officially ‘beaten the cap’; (more on this in a future article) and the government must either approve, deny or ask for additional information within 15 business days. They usually approve, because, again, if you didn’t really have this need, you would simply hire local people for the job and skip calling us to file all of this paperwork!
Step 3: Consulate appointments
Your workers will complete a form called a DS-160 and attend a Consulate appointment in their home country. Most H-2B workers are from Mexico and their appointment will be in Monterrey. Sometimes the workers are already in the US, which often means they can avoid this appointment and instead receive approval paperwork in the mail. Not all workers will be approved at the Consular appointment but the vast majority will be approved. Once approved, your workers can enter the US and begin working for your company.
Most of our clients file for H2B visas every year and often bring the same workers year after year. This means that the workers are trained before they even arrive for the season. It also means that the workers and employers have an ongoing relationship and really become a ‘team’ over the years. Have I mentioned that I really like H-2B visas?
NOTE: In order to prove an employer’s seasonal need, we need to file supporting documents with the government. Usually these supporting documents consist of client contracts, client lists and/or business quarterly tax filings.